Citation Nr: 19177782 Decision Date: 10/10/19 Archive Date: 10/09/19 DOCKET NO. 18-28 807 DATE: October 10, 2019 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for abdominal scarring is denied. REMANDED Entitlement to an increased initial rating for a lumbar strain, rated as 20 percent disabling prior to February 26, 2018 and 40 percent disabling thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for shin splints of the left leg with moderate knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder (including claimed diagnoses of posttraumatic stress disorder (PTSD), anxiety disorder, and depressive disorder), to include as secondary to service-connected disease or injury, is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for cellulitis, to include as secondary to service-connected disease or injury, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disease or injury, is remanded. Entitlement to service connection for carpal tunnel syndrome of the right arm is remanded. Entitlement to service connection for scars of the right elbow, wrist, and finger, to include as secondary to carpal tunnel syndrome of the right arm, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus was incurred in active service. 2. The Veteran has not been shown to have abdominal scarring that is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for abdominal scarring have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1989. The Board notes that the Veteran filed a timely notice of disagreement (NOD) in September 2018 with respect to an August 2018 decision issued by the Agency of Original Jurisdiction (AOJ) adjudicating the issues of entitlement to a total disability rating based on individual unemployability (TDIU) and entitlement to service connection for a right knee injury, a cervical spine injury, a left foot injury, a left knee injury, loss of use of a creative organ, residuals of a right shoulder dislocation, right foot bone spurs, headaches, and bilateral upper extremity neuropathy. The AOJ is aware of the NOD and is continuing to work on the appeals; therefore, these issues will not be remanded at this time. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). Service Connection Service connection is warranted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). As an alternative to the nexus requirement, service connection for this chronic disability, such as tinnitus, may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Tinnitus The Veteran contends that he has tinnitus, or ringing in the ears, which developed during active duty as a result of harmful noise exposure. At the outset, the Board notes that the Veteran has credibly reported experiencing ringing in his ears during the pendency of the appeal. Moreover, he was diagnosed with tinnitus during a November 2014 VA audiological examination. Thus, the Board finds that the current disability element has been met. Additionally, the Board finds that the in-service element has been satisfied. The Veteran’s personnel records reflect that he served as a radio operator, and he has reported (for example, in correspondence received in April 2018) “monitoring and communicating with high frequency [M]orse code for long periods of time”—a task which involved exposure to “constant high pitched screaming and ringing.” The Board accepts his contentions of harmful noise exposure in service. See 38 U.S.C. § 1154(a). Consequently, the only question on appeal is whether there is a link between his current tinnitus and in-service harmful noise exposure. After reviewing the record, the Board finds that the evidence supports the Veteran’s claim that his tinnitus originated in service. As noted above, the Veteran has reported ringing in his ears since being exposed to harmful noises in service. A VA audiological specialist has noted the Veteran’s reports of ringing in the ears since service, and diagnosed him with tinnitus. Although there is some negative evidence in the record regarding the Veteran’s claim, the positive evidence put forth by the Veteran of ringing in his ears during and after active service renders the nexus element to be at least in equipoise. As such, a nexus to service is shown and service connection will be granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). 2. Abdominal scar The Veteran seeks service connection for abdominal scarring. For the following reasons, the Board finds that service connection is not warranted. The Veteran’s service treatment records include no evidence of complaints or treatment for abdominal scarring. Notably, a medical examination performed in March 1991, less than two years after the Veteran’s separation from service, revealed no indication of abdominal scarring. Post-service private and VA treatment records likewise show no evidence of abdominal scarring at any point during the appeal period. None of the myriad VA examinations performed during the appeal period reflect evidence of such scarring. The Veteran’s VA problem list does not indicate a history of abdominal scarring. After carefully reviewing the record, the Board finds that the weight of the evidence is against a finding of a current disability manifested by abdominal scarring. The Veteran has never made specific allegations with respect to this claim; indeed, he has not reported being diagnosed with such a disorder during the instant appeal period. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The lay and medical evidence of record shows no indication of a diagnosis or treatment for scarring on the abdomen. The Board acknowledges that certain symptoms, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if such symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, the Veteran has not alleged, and the weight of the evidence does not reflect, that his claimed abdominal scarring has had this effect during the period on appeal. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a current disability—i.e., symptoms resulting in functional impairment of earning capacity—there can be no valid claim, on either a direct or secondary basis. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Saunders, 886 F.3d at 1367-68. For the reasons discussed above, the Board finds that the Veteran has not put forth probative evidence establishing that his claimed symptomatology constitutes a functional impairment of his earning capacity, to include as a result of service-connected disease or injury. (The Board is aware that the Veteran has not been afforded a VA examination for his claimed abdominal scarring. However, in the absence of competent evidence that the Veteran has a current condition and an indication that it is related to service, no VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).) In sum, in light of the absence of probative evidence of abdominal scarring at any point during the pendency of the Veteran’s appeal, the claim for service connection must be denied. REASONS FOR REMAND Although the Board regrets the additional delay, remand is required to ensure that there is a complete record on which to decide the remaining claims. Outstanding VA Records At the outset, the Board notes that there may be missing VA medical records that are relevant to the remaining claims on appeal. In July 2018, the Veteran submitted a letter stating that he had recently seen a new primary care provider at the Marietta, Ohio VAMC, and attached several pages of clinical notes from that provider. He also stated that the provider was recommending further treatment, including back surgery. However, the most recent VA records in the claims file date from July 2018. Because it appears likely that the Veteran has received VA medical treatment since that time, and such treatment is likely relevant to the disposition of the claims on appeal, a remand is necessary to obtain any outstanding records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Increased Rating Claims 1. Lumbar strain The Veteran last underwent a VA examination for his lumbar strain in February 2018. Since this evaluation, the record reflects that his symptoms may have worsened. In a July 2018 statement, the Veteran indicated that his VA medical provider recommended back surgery; however, given the lack of updated VA records (as noted above), it is not clear whether such a procedure has been performed, or indeed if any new developments have occurred with respect to the Veteran’s lumbar strain. Moreover, the Board notes that VA clinical records from July 2018 show that he received emergency treatment with symptoms of back pain due to lumbar disc prolapse; the significance of these findings with respect to the Veteran’s chronic disability picture is unclear. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In light of the above, the Board finds that an updated VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since that last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 2. Bilateral lower extremity radiculopathy The Veteran contends that his lower extremity radiculopathy warrants increased initial ratings. However, because the Board has directed the AOJ to afford the Veteran an updated examination for his lumbar strain, and because information gleaned from that examination could be relevant to ascertaining the severity of his lower extremity radiculopathy, the Board finds that the claim for increased ratings for radiculopathy must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 3. Shin splints of the left leg with moderate knee disability The Veteran last underwent a VA examination for shin splints of the left leg with moderate knee disability in February 2018. Since that time, it appears his symptoms may have worsened; the Veteran submitted a statement in July 2018 indicating that he suffered from debilitating chronic pain due to his service-connected injuries. That same month, a VA emergency room note shows that he was seen for, among other symptoms, bilateral leg swelling “from feet to knee.” This evidence suggests that the Veteran’s left shin and knee symptomatology has worsened, and that an updated VA examination is therefore necessary. See Snuffer, 10 Vet. App. 400; Green, 1 Vet. App. at 124; Caffrey, 6 Vet. App. at 381. In addition, the Board notes that the February 2018 VA examination report failed to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), or Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, with respect to Correia, although limited motion and painful motion was observed, estimates in the form of degrees of range of motion lost in these circumstances were not provided. With respect to Sharp, despite indications of flare-ups on straightening or bending, and on range of motion, the examiner did not attempt to estimate the frequency, severity, or degree of additional functional loss during such flare-ups. This information should be provided during the requested examination. Service Connection Claims 4. Acquired psychiatric disorder, to include PTSD The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, that is related to traumatic experiences in service. For the following reasons, the Board finds that additional evidentiary development is needed prior to final resolution of this claim. As an initial matter, the Board notes that there are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125. Notwithstanding, VA is obligated to consider all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). With respect to PTSD, the Board first finds that attempts must be made to corroborate the Veteran’s reported in-service stressors. The Veteran has asserted (for example, in a July 2018 statement) that he experienced fear of hostile military or terrorist activity while serving overseas during the Cold War. Specifically, he described living in “constant fear or terror” while on security details in Germany and while participating in the movement of nuclear weapons. He argues these experiences contributed directly to his subsequent psychiatric problems, including PTSD. On review, however, it does not appear that the AOJ has made adequate attempts to verify the Veteran’s stressors. Such attempts must be made on remand. The Board also finds that an updated VA examination is necessary. The Veteran was afforded a VA psychiatric examination in November 2014, following which a psychologist concluded that the criteria for a diagnosis of PTSD had not been met, and that it was unlikely that his psychiatric symptoms were secondary to any of the Veteran’s service-connected disabilities. Since that time, however, the Veteran has questioned these findings, stating that his chronic pain has resulted in mental health problems. The record also includes an August 2018 letter from a VA clinical counselor which reflects that the Veteran has “consistently scored positive for PTSD using PC-PTSD and PCL-5 screens,” and that his “PTSD is the direct result of traumatic experiences that occurred during his time as an active service member.” Consequently, an updated examination is needed (after the requested stressor development has been completed) to clarify any current acquired psychiatric diagnoses and determine whether any such disorder is related to service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 5. Bilateral hearing loss disability The Veteran contends that his current bilateral hearing loss disability developed as a result of harmful noise exposure in service. On review, his service treatment records show that, on examination at enlistment in July 1985, his hearing was normal for VA purposes. See 38 C.F.R. § 3.385. (Notably, the AOJ, in previously determining that the Veteran’s hearing loss was not permanently aggravated during active service, implied that the Veteran’s hearing loss preexisted his service. This is incorrect, as a hearing loss disability was not noted at the Veteran’s enlistment into service.) In any event, the record also includes documentation of post-discharge audiological testing performed in March 1991 which revealed right ear hearing loss that was substantially worse than what was recorded during the Veteran’s period of active service. On VA examination in November 2014, a VA audiologist opined that it was not at least likely as not that the Veteran’s bilateral hearing loss disability was related to his military service. By way of rationale, the audiologist stated that the Veteran’s enlistment audiogram revealed a “mild non-ratable high-frequency hearing loss,” and that the “latest dated (7/22/88) military hearing test” revealed “[n]o positive threshold shift beyond normal measurement variability was demonstrated from 1985 to 1988.” The audiologist cited a 2006 Institute of Medicine, National Academy of Sciences study which found that “a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” No mention was made of the March 1991 audiogram results. The Board finds that a remand is warranted, as the VA audiologist’s opinion is based in inaccurate factual premises and therefore cannot be relied upon to decide the claim. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that medical opinions based on incomplete or inaccurate factual premises are not probative). As discussed above, the record includes audiological testing from less than two years after the Veteran’s discharge from service which reflects substantially worse hearing in the right ear when compared to his enlistment examination. This undermines the basis of the VA audiologist’s opinion, in particular his citation of the Institute of Medicine, National Academy of Sciences study, as there is no longer evidentiary support for a “delay of many years” in the onset of the Veteran’s hearing loss. It is well-established that when VA provides a claimant with a medical examination or opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the issues discussed above, a new examination and opinion is necessary in order to fully evaluate the claim, to include specifically addressing the significance of the March 1991 audiological testing. 6. Cellulitis The Veteran has provided no specific arguments in support of his claim for cellulitis. However, in July 2018, a VA emergency room note shows that he was seen for, among other symptoms, bilateral leg swelling with “concern” for early cellulitis. The Board lacks the expertise to opine as to the significance of these symptoms. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Consequently, a VA examination is warranted to determine (a) if the Veteran has cellulitis, and (b) if such is caused or aggravated by any service-connected disability. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability may be associated with the claimant’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). 7. Left hip disability, to include as secondary to service-connected disease or injury The Veteran contends that he has developed a left hip disability secondary to his service-connected lumbar strain, associated lower extremity radiculopathy, and shin splints. He specifically contends (for example, in April 2018 correspondence) that his service-connected disabilities have altered his gait, which in turn has resulted in hip disability. His VA treatment records document ongoing left hip pain of uncertain etiology. (The Veteran claims to have degeneration of the hip, and has complained of VA’s failure to provide X-rays.) In light of the above, the Board finds that the criteria for a VA examination to evaluate the Veteran’s contentions have been met. See 38 C.F.R. § 3.159(c)(4); McClendon, 20 Vet. App. 79. 8. Carpal tunnel syndrome of the right arm The Veteran contends that his current carpal tunnel syndrome was incurred in service. He specifically argues that this disorder arose as a result of his duties as a radio operator, which included “tapping Morse code.” His private and VA medical records show that he was diagnosed with carpal tunnel syndrome in the mid-1990s. The Veteran was afforded a VA peripheral nerves examination in July 2018. However, the examiner did not provide an opinion as to whether the diagnosed carpal tunnel syndrome was related to service (the examiner merely repeated the Veteran’s assertion that he developed carpal tunnel syndrome from tapping Morse code in service). Consequently, because the record is devoid of any meaningful expert analysis of the Veteran’s specific contentions, and because the Board lacks the requisite medical expertise to opine on such questions, a remand is required in order to provide a more thorough medical opinion. See Colvin, 1 Vet. App. at 175. 9. Scars of the right elbow, wrist, and finger, secondary to carpal tunnel syndrome The Veteran claims entitlement to service connection for scars of the right elbow, wrist, and finger as a result of surgical procedures performed to alleviate his carpal tunnel syndrome. (VA treatment records confirm the existence of scars on the right wrist and distal forearm and on the palmar surfaces of the hand “consistent with old surgeries.”) Because the Board has remanded the claim for carpal tunnel syndrome for evidentiary development, this claim must be remanded as well. See Harris, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include all records of treatment dating from July 2018 to the present. 2. Schedule the Veteran for an examination of the current severity of his lumbar strain, to include associated bilateral lower extremity radiculopathy. To the extent possible, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lumbar strain and discuss the effect of this disability on any occupational functioning and activities of daily living. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 3. Schedule the Veteran for an examination of the current severity of his shin splints of the left leg with moderate knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s disability and discuss the effect of this disability on any occupational functioning and activities of daily living. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 4. Make reasonable attempts to verify the stressors cited by the Veteran, specifically those enumerated in his July 2018 statement, in which he describes fear of hostile military or terrorist activity while serving in Germany. 5. After directive (4) has been accomplished, have the Veteran scheduled for a VA examination to determine the nature and likely etiology of any current acquired psychiatric disorders, to include (but not limited to) PTSD. The examiner must provide an opinion as to whether any acquired psychiatric disorder was at least as likely as not caused or aggravated by in-service stressors. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors and the examiner must be instructed that only these events, or any stressor related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. The examiner should also discuss and reconcile the Veteran’s diagnosis of PTSD his VA treatment records and counseling notes with the November 2014 VA psychiatric evaluation indicating a negative PTSD diagnosis. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinions. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss disability. The examiner must opine as to whether such disability is at least as likely as not related to in-service noise exposure. The examiner must specifically address the Veteran’s in-service reports of hearing loss, as well as the March 1991 audiological testing which notes substantial hearing loss in the right ear. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his cellulitis. The examiner must opine as to whether such disability is at least as likely as not caused or aggravated by any service-connected disease or injury. The examiner must specifically address the July 2018 VA emergency treatment note documenting concerns of early cellulitis. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability of the left hip. The examiner must opine as to the following: (a) Is it at least as likely as not that any left hip disability was incurred or aggravated in service? (Continued on the next page)   (b) Is it at least as likely as not that any such disability was caused or permanently aggravated by any service-connected disability, to include service-connected lumbar strain with associated radiculopathy and/or shin splints of the left leg with moderate knee disability? 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his carpal tunnel syndrome. The examiner must opine whether it is at least as likely as not that such disorder was incurred or aggravated in service, to include as a result of the Veteran’s duties as a radio operator. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.